Who Has a Right to Your Body?

By David Henderson

On Facebook on March 14, the day of the student walkout over guns, I posted the following:

I think the student walkout is a GREAT idea. I would just like to see it extended. Walk out for the rest of the year.

I said it partly in jest and partly because I meant it. My friend economist Jack Tatom replied and there was a back and forth. I report the conversation below for two reasons:
1. It shows that you can have a civil discussion on Facebook.
2. I think Jack started out thinking my viewpoint about who has a right to your body too extreme but ended up agreeing with me.

Jack gave me permission to report this conversation.

Tatom: What a luxury. Students should protest on their own time.

DRH: I agree, Jack Tatom, but I think it’s ALL their own time. They have a right to their bodies.

Tatom: If they are obligated by a state or a contract with a private school, their bodies are their own, but their bodies’ presence in school during normal school hours is legally required unless deviations are allowed by the school. As a taxpayer, I object to paying taxes to support students who are irresponsible about attendance. That is why most if not all states and school districts have truancy laws. We may not be able to control their minds for full participation, but we can get a fair shot by requiring physical presence.

DRH: I don’t agree that the state can override their right to their own bodies.

Tatom: Where is this “right to their bodies” granted and/ or written in law? I am not aware that I have a right to my body. Can you tell me why you think I have one? In any event, it would not apply to minors. Maybe it is like Justice Douglas’s right to privacy.

DRH: I don’t think it is written into law. I don’t think rights are granted.

Tatom: They clearly are granted, as a matter of fact, even though I tend to agree that such state-granted rights are only enforceable at the point of a gun. I believe in natural law. I don’t believe there a right to your body, whatever that might defensibly mean, in Natural Law. Perhaps I’m wrong.

Ross (another friend): Rights are not granted by the state. They are acknowledged by the state or they are not. But even when they are not, they’re still your rights. Slaves had unacknowledged rights, not no rights.

James (a friend who’s a political science): Then, who, Jack, has a right to our bodies, and how have they gained that right?

Tatom: Absolutely no one. We tend to misuse the term “rights.” I am legitimately limited in uses of my body by the state, or even illegitimately. But to argue I have a right to my body raises precisely the two questions you have.

My children, as minors, face even more restrictions, including those imposed by me as a parent. As regards their body, I do not think they have a right, or a legal right, to use their body in any way with which I do not agree and approve. Neither I nor they have a right to their body. My body is mine and theirs is theirs, of course, but that does not convey a right to use their body in any way, place or at any time they wish.

James: Even if you harm no one else?
Who has a Iegitimate claim to control your non-harmful-to-others use of your body and how do they acquire that claim?

Tatom: I answered that–absolutely no one. My body is mine. So I own my body, but I do not have the right to do whatever I want with it. Similarly my children own their bodies, but as minors they have additional moral responsibilities to honor the reasonable contracts I made on their behalf. They do not have a right to skip school or join a demonstration on school time without my permission and that of the school to which I committed my child’s attendance.

DRH: So if they don’t have the right to join a demonstration on school time without your permission, do they have the right to take math or civics without your permission?

Tatom (replying to James): James, Sorry, I thought you asked me again. But the answer is the same: no one has the legitimate claim to coerce the use of my body except those to whom I might have granted that claim.

Tatom: David, actually I think the answer is no, but in practice I think I have given them that decision making judgement subject to not screwing it up. If that works as planned, I never have to give permission because I have given it conditional on reasonable decision making. I am not a believer in calling these decisions “rights.”

DRH: So you can decide against, even if the school disagrees and wants to force your kid to take those courses, right?

James Hanley: “no one has the legitimate claim to coerce the use of my body except those to whom I might have granted them that claim.”
And that doesn’t equal you having a right over your own body?

Tatom: David, my agreement with a school implies mutual consent. And my child presumably has a say, as well. Ultimately it is my say, but I presume the school I pick has an advantage in selecting courses for my children. But my responsibility extends beyond their’s.

Tatom: James, no, it does not. My “rights” are limited by regard for other’s rights and by the extent to which I have transferred rights to others, which are subject to limitations. Perhaps the notion of ownership vs. use rights would help clarify this. I own myself and that is in some sense an absolute right, but I can contract away use rights, which are inherently limited. When you say “a” right, I suppose I have to agree, but what or which right that is, is undefined. Perhaps it is more appropriate to say others do not have a right to the use of my body unless I transfer it, subject to reasonable limitations, to them. Accordingly, it is not correct to say I have the right to the use of my body to the exclusion of all other’s rights.

READER COMMENTS

Mar 25 2018 at 10:43pm

They clearly are granted, as a matter of fact, even though I tend to agree that such state-granted rights are only enforceable at the point of a gun.

Thomas Jefferson would disagree…at least at to the “grantor” of the rights:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness

Robert Schadler

Mar 26 2018 at 11:25am

Splendid example of the problems of libertarian political theory! Trying to do political theory with fundamentally just economic theory. “self evident”, “created equal,” and “endowed by their Creator”. Darwin destroyed the last: endowed by countless mutations over billions of years has made humans a smarter mammal than other mammals. Created equal is hardly self evident or obvious in any normal understanding: criminals, crazies and children surely have some kind of restrictions, socially and governmentally, than do others. And there is nothing “self evident” on which rights are “unalienable” as this discussion fully demonstrates.
Trying to ground EVERY RIGHT in natural law/natural rights theory is also a dead end. Nor does it make any sense to try to dismiss “government” from any role in determining and interpreting and, yes, enforcing a plethora of “rights”, some of which are of great importance and many are marginal.

David R Henderson

Mar 26 2018 at 12:03pm

@Robert Schadler,
Just to clarify, I take it that you’re responding to Mark Bahner, right? I didn’t mention “self evident,” “created equal,” or “endowed by their Creator.”

Mar 26 2018 at 12:04pm

Darwin destroyed, “…endowed by their Creator…”? Nothing can destroy “endowed by their Creator”!

“…endowed by countless mutations over billions of years has made humans a smarter mammal than other mammals.”

I don’t see how that is incompatible with the notion of a Creator that endows humans with rights.

Trying to ground EVERY RIGHT in natural law/natural rights theory is also a dead end. Nor does it make any sense to try to dismiss “government” from any role in determining and interpreting and, yes, enforcing a plethora of “rights”, some of which are of great importance and many are marginal.

The important point is that governments don’t “grant” rights. People have rights. They were born with them. The fact that governments fail to recognize or protect those rights (e.g., the Founders’ monumental failure to eliminate slavery) doesn’t mean that those rights don’t exist. It simply means the government has failed to protect those rights.

Mar 26 2018 at 12:36pm

Similarly my children own their bodies, but as minors they have additional moral responsibilities to honor the reasonable contracts I made on their behalf.

Lots of things remind me of scenes from good movies. This reminds me of the scene from The Godfather where Michael Corleone has just his brothers (including Tom Hagen) that he has just enlisted in the Marines, following Pearl Harbor.

TOM: Now you don’t understand but, uh, your father has big plans for you. Now many times he and I have talked about your future.

Mar 26 2018 at 12:42pm

Oops…the first two lines of my comments at 12:04 PM should have been deleted. I meant to start the comments with the quote that starts, “…endowed by countless mutations over billions of years…”

Phil

Mar 26 2018 at 4:33pm

As someone trained in the law, I find such conversations frustrating. If I sign a contract that says I will be at work from 9 to 5 on weekdays, my employer has a right to my body being present at work. I forfeited my right to my body to my employer when I signed the employment contract; and, in exchange, I have a legal right to my employer’s money (my salary). Should I choose to exercise a right in my body, I am subject to my employer’s exercising his right to enforce the contract I signed.

Similarly, when a parent enrolls a child in a school with a mandatory attendance policy, they (as the legal proxy for the child) forego a right in their child’s presence. If that school is a government school my taxes pay for, I resent when the school capriciously ignores that right to let kids go protest the cause du jour. I resent it a lot when they use more of my tax dollars to bus the students to the protest.

Many people asked where these rights originate — maybe they originate in natural law or maybe they originate in the common law, but I do not think that matters here. Either way, they are affected by our actions and decisions.

David R Henderson

Mar 26 2018 at 8:04pm

@Phil,As someone trained in the law, I find such conversations frustrating.
I’m sorry you feel frustrated. As you’ll see below and I hope you saw in the post, I think we got somewhere.If I sign a contract that says I will be at work from 9 to 5 on weekdays, my employer has a right to my body being present at work.
Sure. You signed a contract. That doesn’t mean you don’t have a right to your body. In fact, you used that right to sign a contract. It was only because you own your body that you could sign such a contract.I forfeited my right to my body to my employer when I signed the employment contract;
I disagree. See my comment directly above. You still have the right to your body or else you wouldn’t have been able to sign the contract.and, in exchange, I have a legal right to my employer’s money (my salary).
Correct.Should I choose to exercise a right in my body, I am subject to my employer’s exercising his right to enforce the contract I signed.
Correct.Similarly, when a parent enrolls a child in a school with a mandatory attendance policy, they (as the legal proxy for the child) forego a right in their child’s presence.
I agree with that too, if and only if the parent does it voluntarily rather than under the duress of a compulsory attendance law.If that school is a government school my taxes pay for, I resent when the school capriciously ignores that right to let kids go protest the cause du jour.
See my comment on compulsion.I resent it a lot when they use more of my tax dollars to bus the students to the protest.
Amen, brother.

Gerald

Mar 27 2018 at 10:57am

I agree with Phil, but I am not quite sure I understand David’s position. In the last post he states: “I agree with that too, if and only if the parent does it [school enrollment] voluntarily rather than under the duress of a compulsory attendance law.”

But isn’t it fair to assume that most children in public schools are there because their parents want them there (i.e., it is a voluntary decision by the parents)? After all, there are other educational options (e.g., private schools, homeschooling). And if most parents voluntarily send their children to school, wouldn’t David’s original thought that a “student walkout is a GREAT idea” be contrary to the parents’ wishes (i.e., that those children children be in school, not walking out of it), and thus not really such a great idea?

David R Henderson

Mar 27 2018 at 12:29pm

@Gerald,But isn’t it fair to assume that most children in public schools are there because their parents want them there (i.e., it is a voluntary decision by the parents)?
Very good point. So my original idea would apply to those whose parents don’t want them in those schools.And if most parents voluntarily send their children to school, wouldn’t David’s original thought that a “student walkout is a GREAT idea” be contrary to the parents’ wishes (i.e., that those children children be in school, not walking out of it), and thus not really such a great idea?
Yes.

Gerald

Mar 27 2018 at 5:58pm

Thanks. I appreciate the clarification.

David R Henderson

Mar 27 2018 at 9:49pm

@Gerald,
You’re welcome. You deserve most of the credit though.

Comments are closed.

SHARE
POST:

Enter your email address to subscribe to our monthly newsletter:

COLLECTION: LIBERTY

The article you’re reading is part of Econlib’s Liberty collection. Explore other
Liberty articles: